Citation Nr: 0432456
Decision Date: 12/08/04 Archive Date: 12/15/04
DOCKET NO. 02-12 823A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Whether there was clear and unmistakable error in a
rating decision of July 25, 1960, which denied entitlement to
service connection for epilepsy.
2. Entitlement to service connection for diabetes mellitus.
3. Entitlement to service connection for sinusitis.
4. Entitlement to service connection for a disorder
characterized by "blackout spells."
5. Entitlement to service connection for a "heart
condition."
6. Entitlement to service connection for hypertension.
7. Entitlement to service connection for chronic headaches.
8. Entitlement to service connection for a disorder
characterized by swelling of the hands and feet.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from July 1952 to January
1953, and from February 1953 to November 1955, with
additional service in the United States Naval Reserve.
This case comes before the Board of Veterans' Appeals (Board)
on an appeal of a February 2002 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Columbia, South
Carolina.
Upon review of the file, it would appear that the veteran
seeks consideration of whether new and material evidence has
been submitted sufficient to reopen previously denied claims
of service connection for an acquired psychiatric disorder
and epilepsy (claimed as a convulsive disorder and a seizure
disorder). Inasmuch as these issues have not been developed
or certified for appellate review, they are not for
consideration at this time. They are, however, being
referred to the RO for clarification, and, if necessary,
appropriate action.
Finally, for reasons which will become apparent, the issues
of service connection for hypertension, sinusitis, a headache
disorder, and "blackout spells" are being REMANDED to the RO
via the Appeals Management Center (AMC) in Washington, D.C.
The VA will notify you if further action is required on your
part.
FINDINGS OF FACT
1. In a rating decision of July 25, 1960, with which the
veteran voiced no disagreement, the RO denied entitlement to
service connection for epilepsy.
2. The rating decision of July 25, 1960, which denied
entitlement to service connection for epilepsy, was
adequately supported by and consistent with the evidence then
of record.
3. Diabetes mellitus is not shown to have been present in
service, or for many years thereafter.
4. A chronic "heart condition" is not shown to have been
present in service, or for many years thereafter.
5. Chronic swelling of the hands and/or feet is not shown to
have been present in service, or for many years thereafter.
CONCLUSIONS OF LAW
1. The rating decision of July 25, 1960, which denied
entitlement to service connection for epilepsy, was not
clearly and unmistakably erroneous. 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. §§ 3.104(a), 3.105(a) (2003).
2. Diabetes mellitus was not incurred in or aggravated by
active military service, nor may such a disability be
presumed to have been so incurred. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2003).
3. A chronic "heart condition" was not incurred in or
aggravated by active military service, nor may such a
disability be presumed to have been so incurred. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2003).
4. A chronic disorder characterized by swelling of the hands
and feet was not incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§ 3.303 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Development of the Claim
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002) redefined VA's duty to assist the veteran in the
development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2003).
The notice requirements of the VCAA require VA to notify the
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing. Quartuccio
v. Principi, 16 Vet. App. 183 (2002).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of Appeals for Veterans Claims (hereinafter,
"the Court") held, in part, that a VCAA notice, as required
by 38 U.S.C.A. § 5103(a), must be provided to a claimant
before the initial unfavorable decision on a claim for VA
benefits by the agency of original jurisdiction (in this
case, the RO). The Court also held, however, that providing
the VCAA notice to the claimant after the initial decision
could satisfy the requirements of the VCAA if the timing of
the notice was not prejudicial to the claimant. Pelegrini,
18 Vet. App. at 121.
In correspondence of July 2001, prior to the decision on
appeal, the RO provided notice to the veteran regarding the
evidence needed to substantiate his claims, the evidence he
must provide, the evidence which VA would obtain on his
behalf, and the need to advise VA of or to submit. The
veteran was also provided a copy of the appealed rating
decision, a Statement of the Case and Supplemental Statement
of the Case apprising him of various VA actions in his case.
In this case, the veteran was given every opportunity to
submit evidence, and to attend a hearing at the RO before a
Decision Review Officer, or before a Veterans Law Judge at
the RO, or in Washington, D.C. In fact, the veteran offered
testimony in support of his claims at a videoconference
hearing before the undersigned Veterans Law Judge in August
2004. He has been provided with notice of the appropriate
laws and regulations, and given notice of what evidence he
needed to submit, as well as what evidence the VA would
secure on his behalf. Moreover, the veteran was given ample
time to respond.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). Accordingly, the Board
concludes it should proceed, as specific notice as to which
party could or should obtain which evidence has been
provided, and no additional pertinent evidence appears
forthcoming. See Quartuccio v. Principi, 16 Vet. App. 183
(2002). The veteran has had sufficient notice of the type of
information needed to support his claims, and of the evidence
necessary to complete the application.
Furthermore, the Board notes that the VA has made reasonable
efforts to obtain relevant records adequately identified by
the veteran. In that regard, the Board notes that the
evidence includes service medical records, as well as VA and
private treatment records and examination reports. Under the
facts of this case, "the record has been fully developed"
with respect to the issues on appeal, and "it is difficult to
discern what additional guidance the VA could have provided
to the veteran regarding what further evidence he could
submit to substantiate his claims." Conway v. Principi, 353
F.3d 1369 (Fed. Cir. 2004). Accordingly, adjudication of
these claims poses no risk of prejudice to the veteran.
Therefore, the duty to assist and notify as contemplated by
the applicable provisions, including the VCAA, has been
satisfied with respect to the issues on appeal. Accordingly,
appellate review may proceed without prejudice to the
veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Regarding the veteran's claim of clear and unmistakable error
in a July 25, 1960 rating decision denying service connection
for epilepsy, the Board notes that, in Livesay v. Principi,
14 Vet. App. 324 (2001), the United States Court of Veterans
Appeals for Veterans Claims (Court) concluded that the VCAA
is not applicable to issues regarding allegations of clear
and unmistakable error.
Factual Background
Service clinical records reveal that, in November 1952, the
veteran was seen for a complaint of pain across his eyes when
drinking water, as well as "spitting blood," and a "sick
stomach." A physical examination conducted at that time was
somewhat questionable for the presence of sinusitis. The
tentative diagnosis noted was chronic purulent frontal
sinusitis, which was subsequently changed to peptic ulcer
disease.
Service separation examinations conducted in December 1952
and January 1953 were entirely negative for any of the
disabilities at issue.
A service record of hospitalization dated in May 1953 reveals
that the veteran was seen at that time for pain, swelling,
and redness in his right foot. At the time of admission, the
veteran gave a history of headaches in conjunction with
sinusitis. A physical examination was essentially
unremarkable. The clinical impression was multiple abscesses
of the leg and cellulitis.
In an entry of mid-January 1954, it was noted that the
veteran had been brought to the emergency room following a
"seizure" in the barracks. Reportedly, the veteran was on
his cot when he experienced an "attack" characterized by
"jerking" and "thrashing" of his arms, as well as chewing of
his tongue. Noted at the time was that the veteran sometimes
experienced a lapse of memory. Also noted was a history of
head trauma while in the Navy.
On physical examination, there was noted a tonic-clonic
seizure which was relieved by sodium Amytal. However, an
examination of the veteran's throat, mouth, and tongue showed
no evidence of any biting or trauma. According to the
examiner, the veteran seemed too intent on trying to convince
those examining him that he had suffered a "spell" of some
kind. The veteran did not impress the examiner as having had
a convulsion. Further noted was that, during a previous
hospitalization, the veteran had been reading "sick books."
An electroencephalogram conducted in January 1954 was
consistent with the presence of a convulsive disorder.
However, following an extended period of observation and
further evaluation, the diagnosis reached was one of
suspected epilepsy, not confirmed.
In an entry of late January 1954, it was noted that recent
ophthalmologic and neurologic workups had yielded no
objective or subjective findings.
At the time of a medical consultation in early April 1954, it
was noted that, while the veteran had previously been
hospitalized with a diagnosis of epileptiform seizure, that
diagnosis was colored with certain functional elements.
Reportedly, an electroencephalogram performed at that time,
while not diagnostic, was compatible with certain abnormal
patterns seen in atypical cases of epilepsy.
A service clinical record dated in early May 1955 reveals
that the veteran was seen at that time for a sinus infection
in conjunction with a cold. Treatment was in part with
medication.
At the time of a service separation examination in November
1955, there was no evidence of diabetes mellitus, or of any
neurological impairment. The veteran's sinuses and heart
were within normal limits, as were his lower extremities, and
no pertinent diagnoses were noted.
A VA general medical examination conducted in December 1955
was negative for evidence of a heart condition, diabetes
mellitus, sinusitis, or epilepsy.
A private medical record dated in January 1960 reveals that
the veteran was seen in the emergency room for what was
described as a "dietary indiscretion." Reportedly, at the
time of admission, the veteran was very uncooperative, with
the result that it was impossible to obtain a history from
him. Physical examination revealed a laceration on the
dorsal area of the veteran's right hand. Neurological
evaluation showed the veteran to be confused and excited,
with some evidence of a clonic convulsion. The pertinent
diagnosis was dietary indiscretion, with a convulsive
disorder and laceration of the right hand.
In correspondence of February 1960, the clinical director of
a private medical facility indicated that skull films taken
January 1960 were negative. Also noted was that routine
laboratory examinations had been within normal limits.
In a rating decision of July 25, 1960, the RO denied
entitlement to service connection for epilepsy. Noted at
that time was that, during the course of an induction
examination in July 1952, the veteran had been highly
excitable, with stammering of speech. A psychiatric
evaluation was recommended, but there was no record that any
such evaluation had been performed. Service records showed
treatment on several occasions for colds, with one episode of
treatment for sinusitis. An induction examination conducted
for the purpose of the veteran's enlistment in the United
States Air Force was negative for disabilities other than
scars and defective vision. In July 1953, the veteran was
reportedly observed for a fainting sensation, but no disease
was found. During hospitalization, the veteran gave a
history of having been hit on the head by a box while in the
Navy. However, there was no record of any such injury. In
January 1954, the veteran was observed to have a seizure
which was relieved by sodium Amytal. The veteran
subsequently underwent medical observation for epilepsy, the
presence of which was not confirmed. Hospitalization in June
and July 1955 resulted in a diagnosis of schizophrenic
reaction. That diagnosis, which was not concurred in, was
subsequently replaced by a diagnosis of passive-aggressive
reaction. A report from January 1959 showed that the veteran
was treated in a local emergency room for what was described
at that time as a dietary indiscretion. A subsequent
hospitalization in January 1960 was significant for a
diagnosis of inadequate personality.
Based on the aforementioned, the RO concluded that the single
episode of "seizure" observed in January 1954 had not been
"definitely diagnosed" as epileptic. Nor had epilepsy ever
been diagnosed in any subsequent medical report.
Accordingly, service connection for epilepsy was denied as
not shown by the evidence of record.
On VA general medical examination in December 1965, the
veteran complained of a chronic fungus infection of his feet
and toes. Reportedly, that infection resulted in a swelling
of the veteran's feet and toes which was sometimes so severe
that he could not wear shoes.
On physical examination, there were noted certain old signs
of skin lesions on both of the veteran's feet. The veteran's
sinuses were within normal limits, as was his heart.
Following examination, the examiner commented that he was
unable to find anything on physical examination to explain
the veteran's multiplicity of symptoms.
VA general medical examination in November 1970, noted a
fungus infection of both of the veteran's feet resulting in,
among other things, blisters. On further examination, the
veteran's sinuses were within normal limits. When
questioned, the veteran gave a history of chest pain in
service, followed by a heart attack in December 1969.
However, an examination of the veteran's heart showed normal
heart signs, with no murmurs or edema. The pertinent
diagnosis was fungus infection of both feet.
During VA hospitalization for an unrelated medical problem in
December 1970, it was noted that the veteran's
electrocardiogram was within normal limits, and that there
was no evidence whatsoever of heart disease.
On subsequent VA hospitalization during the months of October
and November 1972, a chest X-ray was within normal limits, as
was an electrocardiogram.
Correspondence from two of the veteran's friends dated in
March 1975 is to the effect that, while in service, the
veteran experienced swelling of his feet.
Radiographic studies of the veteran's sinuses conducted
during the course of VA outpatient treatment in April 1975
were within normal limits.
At the time of a period of VA hospitalization for an
unrelated medical problem in September 1975, it was noted
that the veteran's heart was within normal limits, as was a
chest X-ray, and electrocardiogram.
A VA record of hospitalization dated in March 1995 reveals
that the veteran was seen at that time for a routine followup
of hypertension and diabetes mellitus. At the time of
admission, the veteran gave a past medical history of
diabetes mellitus, reportedly diagnosed in 1955. On physical
examination, the veteran's heart displayed a regular rhythm
and rate, with a I/VI systolic ejection murmur at the left
sternal border. An electrocardiogram was consistent with
left ventricular hypertrophy. The pertinent diagnosis was
diabetes mellitus.
At the time of a period of VA hospitalization in January
2000, the veteran complained of swelling and pain in his
right hand. Pertinent history included insulin-dependent
diabetes mellitus, as well as a myocardial infarction. On
physical examination, there was some mild to moderate
swelling of the veteran's right hand which did not extend
above the wrist. Radiographic studies of the veteran's right
hand were consistent with diffuse soft tissue swelling, as
well as degenerative changes involving the second
metatarsophalangeal and first carpal-metacarpal joint. The
pertinent diagnoses were swelling and pain in the right hand,
and diabetes.
At the time of a period of VA hospitalization in May 2000,
the veteran gave a history of diabetes mellitus and
myocardial infarction.
During a July 2003 VA general medical examination, the
veteran gave a history of diabetes mellitus since 1955. Also
noted was coronary artery disease, with two myocardial
infarctions and coronary artery bypass surgery in 2002.
On physical examination, the veteran's heart displayed a
regular rhythm, with a systolic murmur which was heard well
over the entire precordium. There was 3+ pitting edema of
both of the veteran's lower extremities. The pertinent
diagnoses were diabetes mellitus, peripheral neuropathy, and
coronary artery disease.
During the course of a videoconference hearing in August
2004, the veteran offered testimony regarding the nature and
etiology of the disabilities at issue.
Analysis
Clear and Unmistakable Error
The veteran in this case seeks service connection for
epilepsy, essentially on the basis that the July 25, 1960
rating decision which denied entitlement to service
connection for that disability was clearly and unmistakably
erroneous. In that regard, service connection may be granted
for disability resulting from disease or injury incurred in
or aggravated by active military service. 38 U.S.C.A.
§§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and epilepsy becomes
manifest to a degree of 10 percent within one year from date
of termination of such service, such disease shall be
presumed to have been incurred in service, even though there
is no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002);
38 C.F.R. §§ 3.307, 3.309 (2003).
The Board notes that, under 38 C.F.R. §§ 3.104(a) and
3.105(a) (2003) taken together, a rating action is final and
binding in the absence of clear and unmistakable error. A
decision which constitutes a reversal of a prior decision on
the grounds of clear and unmistakable error has the same
effect as if the corrected decision had been made on the date
of the reversed decision. 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. § 3.105(a) (2003). Under 38 C.F.R. § 3.105(a)
(2003), "[P]revious determinations which are final and
binding will be accepted as correct in the absence of clear
and unmistakable error." The United States Court of Appeals
for Veterans Claims has provided the following guidance with
regard to a claim of "clear and unmistakable error:"
In order for there to be a valid claim of
'clear and unmistakable error,' there
must have been an error in the prior
adjudication of the claim. Either the
correct facts, as they were known at the
time, were not before the adjudicator, or
the statutory or regulatory provisions
extant at the time were incorrectly
applied. The claimant, in short, must
assert more than a disagreement as to how
the facts were weighed or evaluated.
Russell v. Principi, 3 Vet. App. 310,
313-14 (1992).
The Court in Russell further stated:
Errors that would not have changed the
outcome are harmless; by definition, such
errors did not give rise to a need for
revising the previous decision. The
words 'clear and unmistakable error' are
self-defining. They are errors that are
undebatable, so that it could be said
that reasonable minds could only conclude
that the original decision was fatally
flawed at the time it was made. A
determination that there was 'clear and
unmistakable error' must be based on the
record and the law that existed at the
time of the prior AOJ [agency of original
jurisdiction] or Board decision.
Russell, 3 Vet. App. at 313-14 (1992).
In determining whether there is clear and unmistakable error,
the doctrine of reasonable doubt in favor of the veteran
under 38 U.S.C.A. § 5107(b) (West 2002) is not for
application, inasmuch as error, if it exists, is undebatable,
or there was no error within the meaning of 38 C.F.R.
§ 3.105(a) (2003). Russell, 3 Vet. App. 314 (1992).
The Court has consistently stressed the rigorous nature of
the concept of clear and unmistakable error. "Clear and
unmistakable error is an administrative failure to apply the
correct statutory and regulatory provisions to the correct
and relevant facts; it is not mere misinterpretation of
facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372
(1991). "Clear and unmistakable error requires that error,
otherwise prejudicial must appear undebatably." Akins v.
Derwinski, 1 Vet. App. 228, 231 (1991). "It must be
remembered that clear and unmistakable error is a very
specific and rare kind of error." Fugo v. Brown, 6 Vet. App.
40, 43 (1993). In Russell, Fugo, and other decisions, the
Court has emphasized that merely to aver that there was clear
and unmistakable error in a rating decision is not sufficient
to raise the issue. The Court has further held that simply
to claim clear and unmistakable error on the basis that
previous adjudications had improperly weighed the evidence
can never rise to the stringent definition of clear and
unmistakable error.
In the present case, the original rating decision denying
entitlement to service connection for epilepsy was issued on
July 25, 1960. The veteran voiced no disagreement with that
decision. Accordingly, the decision of July 25, 1960,
absent clear and unmistakable error, is final.
The Board notes that, in 1954, during the veteran's period of
active military service, he received treatment for what
initially appeared to be a tonic-clonic seizure. However, on
physical examination, there was no evidence of any biting or
trauma of the veteran's tongue. Reportedly, the veteran was
"intent" on convincing the examiner that he had suffered a
"spell" of some kind. While on further evaluation, an
electroencephalogram was "consistent" with a history of
convulsive disorder, subsequently ophthalmologic and
neurologic evaluations showed no objective or subjective
findings. Following a period of additional evaluation and
observation, it was ultimately determined that the veteran's
suspected epilepsy had not been confirmed. Significantly, at
the time of a service separation examination in November
1955, there was no evidence of epilepsy, or of a seizure
disorder of any kind. A VA general medical examination
conducted the following month was similarly negative for
neurological findings consistent with epilepsy. While at the
time of private emergency room treatment in January 1960,
there was noted a so-called "convulsive disorder," that
disability was felt to be the result of a "dietary
indiscretion."
Based on such evidence, the RO, in a rating decision of July
25, 1960, denied entitlement to service connection for
epilepsy. In so doing, the RO noted that, while in January
1954, the veteran reportedly experienced a seizure,
subsequent medical observation failed to confirm the presence
of that disorder. Moreover, epilepsy had, in fact, never
been diagnosed in any subsequent medical report.
The Board acknowledges that, at the time of the
aforementioned rating decision in July 1960, there was of
record certain evidence which appeared to show seizure-like
activity in service. However, following rather extensive
observation and evaluation, it was subsequently determined
that the veteran did not, in fact, suffer from epilepsy. In
point of fact, as noted above, on service separation in
November 1955, and once again on VA general medical
examination the following month, there was no evidence of a
seizure disorder or epilepsy. Under such circumstances, the
RO was clearly within the bounds of "rating judgment" when it
reached the conclusion that service connection for epilepsy
should be denied. Porter v. Brown, 5 Vet. App. 233 (1993);
see also Kronberg v. Brown, 4 Vet. App. 399 (1993). To
determine otherwise would, in effect, amount to holding the
RO liable for improperly weighing the pertinent evidence of
record, a standard which does not rise to the level of clear
and unmistakable error.
The Board has taken into account the veteran's contentions at
the time of a videoconference hearing before the undersigned
Veterans Law Judge in August 2004. However, based on the
entire evidence of record, the Board finds that the rating
decision of July 25, 1960, which denied entitlement to
service connection for epilepsy, was adequately supported by
and consistent with the evidence then of record.
Accordingly, the veteran's claim of clear and unmistakable
error in that decision must fail.
Service Connection
Turning to the issues of service connection for diabetes
mellitus and a chronic "heart condition," the Board once
again notes that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. § 3.303 (2003).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and cardiovascular disease
and/or diabetes mellitus becomes manifest to a degree of
10 percent within one year from date of termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2003).
In the present case, service medical records are negative for
history, complaints or abnormal findings indicative of the
presence of diabetes mellitus or a chronic "heart condition."
As of the time of the veteran's service separation
examination in November 1955, his heart was entirely within
normal limits. That examination was similarly negative for
evidence of diabetes mellitus. The earliest clinical
indication of the presence of either of those disabilities is
revealed by a VA general medical examination dated in
November 1970, almost 15 years following the veteran's
discharge from service, at which time he gave a history of
myocardial infarction in December 1969. Diabetes mellitus
was, similarly, first noted at a point in time many years
following the veteran's discharge from service.
Significantly, at no time have the veteran's diabetes
mellitus or heart disease been attributed to some incident or
incidents of his period of active service. Under such
circumstances, service connection for both of those
disabilities must be denied.
Turning to the issue of service connection for swelling of
the extremities, the Board acknowledges that the veteran
received treatment for some swelling of his lower extremities
in service. However, the abscesses and cellulitis treated in
service was acute and transitory in nature, and resolved
without residual disability. As of the time of the veteran's
service separation examination in November 1955, there was no
evidence of any chronic disability resulting in swelling of
the extremities. While subsequent to service, there was
noted some swelling of the veteran's feet due to fungus
infections, at no time was that swelling attributed to any
incident of the veteran's period of active service.
Similarly, swelling of the right hand first noted in January
2000 was not attributed to the veteran's active military
service. from service, he has received a diagnosis of, or
treatment for, chronic sinusitis.
Based on the aforementioned, the Board is unable to
reasonably associate any current disorder manifested by
swelling of the extremities with any incident of is period of
active service. Accordingly, service connection must be
denied.
In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b) ; Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
(CONTINUED ON NEXT PAGE)
ORDER
There was no clear and unmistakable error in a July 25, 1960
rating decision denying service connection for epilepsy.
Service connection for diabetes mellitus is denied.
Service connection for a "heart condition" is denied.
Service connection for a disorder characterized by swelling
of the hands and feet is denied.
REMAND
In addition to the above, the veteran in this case seeks
service connection for hypertension, chronic sinusitis,
headaches, and a disorder characterized by "blackout spells."
A review of the record discloses that while in service, the
veteran on a number of occasions exhibited somewhat elevated
blood pressures. However, there remains some question as to
whether, during service, the veteran actually suffered from
documented chronic essential hypertension. In this regard,
his service medical records note that he was hospitalized for
observation for hypertension in April 1954, but no
abnormality was found.
Headaches and sinusitis, also noted on occasion during the
veteran's period of active service, were not diagnosed at the
time of the service separation examination in November 1955.
However, at the time of that examination, the veteran did
complain of "frequent or severe headaches," although he
denied sinusitis. Additionally, on various occasions during
service, the veteran was heard to complain of "blackout
spells" or fainting spells. In July 1953 he was hospitalized
for observation of "fainting sensations" but no disease was
found. No clinical findings of such "spells" were noted on
service separation in November 1955, although he reported a
history of such at that time.
The Board acknowledges that, since the time of the veteran's
discharge from service, he has received a confirmed diagnosis
of hypertension, and VA treatment records revealed complaints
of chronic sinusitis. Because the veteran was seen in
service for symptoms consistent with these conditions, and
receives current treatment for these disorders, the Board
finds that a VA examination is necessary to determine whether
a nexus exists between the current disorders and service.
See 38 C.F.R. § 3.159(c)(4) (An examination or opinion shall
be treated as being necessary to make a decision on the claim
if the evidence of record contains competent evidence that
the claimant has a current disability or recurring symptoms
of such, and indicates that the disability or symptoms may be
associated with the claimant's active service, but does not
contain sufficient medical evidence for VA to make a decision
on the claim.)
With respect to the other two issues, it has yet to be
determined whether the veteran actually suffers from a
chronic headache disorder or some chronic disability
characterized by "blackout spells," due to a physical disease
or condition. In this regard, the Board notes that his
complaints of headaches and "blackout spells" have in the
past been attributed to a personality disorder. The evidence
shows the veteran currently complaining of headaches and
"blackout spells" in VA treatment records and in his
hearing testimony. Accordingly, a VA examination is also
necessary on these issues. Id.
Since the Board has determined that an examination is
necessary in the instant case, the veteran is hereby informed
that 38 C.F.R. § 3.326(a) provides that individuals for whom
examinations have been authorized and scheduled are required
to report for such examinations. The provisions of 38 C.F.R.
§ 3.655 address the consequences of a veteran's failure to
attend scheduled medical examinations. That regulation at
(a) provides that, when entitlement to a benefit cannot be
established or confirmed without a current VA examination and
a claimant, without "good cause," fails to report for such
examination, action shall be taken. At (b) it is provided
that when a claimant fails to report for an examination
scheduled in conjunction with an original compensation claim,
the claim shall be rated based on the evidence of record.
However, when the examination is scheduled in conjunction
with any other original claim, a reopened claim for a benefit
which was previously disallowed, or a claim for increase, the
claim shall be denied.
In light of the aforementioned, the case is REMANDED to the
RO for the following actions:
1. Any pertinent VA or other inpatient
or outpatient treatment records,
subsequent to July 2003, the date of the
most recent pertinent clinical evidence
of record, should be obtained and
incorporated in the claims folder. The
veteran should be requested to sign the
necessary authorization for release of
any private medical records to the VA.
All attempts to procure records should be
documented in the file. If the RO cannot
obtain records identified by the veteran,
a notation to that effect should inserted
in the claims file. In addition, the
veteran and his representative should be
informed of any such problem.
2. The veteran should then be afforded
VA examinations in order to more
accurately determine the exact nature and
etiology of his current hypertension,
sinusitis, and claimed headaches and
"blackout spells."
As regards the requested examinations,
all pertinent symptomatology and findings
should be reported in detail, and all
appropriate studies should be performed.
The claims file must be reviewed prior to
the completion of the examinations.
The examiners should conduct the
pertinent examinations and, based on the
results of the examinations, review of
the medical evidence of
record, and sound medical principles,
provide the following opinions:
(a) With respect to the claim for
hypertension, the appropriate examiner
should specifically comment as to
whether the veteran's current
hypertension as likely as not had its
origin during his period of active
military service. The examiner must
provide the rationale for his/her
conclusion, to include discussion of
the negative workup for the condition
during hospitalization in April 1954.
(b) With respect to the claim for
sinusitis, the appropriate examiner
should specifically comment as to
whether the veteran currently suffers
from chronic sinusitis, and if so,
whether the disorder as likely as not
had its origin during his period of
active military service. The examiner
must provide the rationale for his/her
conclusions.
(c) With respect to the claims for
service connection for headaches and
"blackout spells," the veteran must
undergo a neurological examination by
a specialist in that field. The
specialist must specifically comment
as to whether the veteran currently
suffers from chronic physical
disorders characterized by headaches
and/or "black out spells," and, if so,
whether such disorders as likely as
not had their origins during the
veteran's periods of active military
service. It is imperative that the
claims file be fully reviewed due to
the complex nature of the complaints,
tests, and findings during service and
post-service. If, and only if, the
neurological specialist determines
that a psychiatric examination is
required to adequately answer the
question posed, such examination
should be authorized. The examiner
must provide the rationale for his/her
conclusion.
The claims folder and a separate copy of
this REMAND must be made available to and
reviewed by the examiners prior to
completion of the examinations.
Moreover, a notation to the effect that
this record review took place must be
included in the examination reports.
3. Thereafter, the RO should review the
claims folder to ensure that the
foregoing requested development has been
completed. In particular, the RO should
review the examination reports to ensure
that they are responsive to and in
compliance with the directives of this
remand and if not, the RO should
implement corrective procedures. See
Stegall v. West, 11 Vet. App. 268 (1998).
4. The RO should then review the
veteran's claims for service connection
for hypertension, sinusitis, headaches,
and "blackout spells." Should the
benefits sought on appeal remain denied,
the veteran and his representative should
be provided with a Supplemental Statement
of the Case (SSOC). The SSOC must
contain notice of all relevant action
taken on the claims for benefits since
the last SSOC in May 2004. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The veteran need take no action until otherwise
notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
KATHY A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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